Andy Worthington, author of The Guantanamo Files, discusses the last ditch effort of Omar Khadr’s military lawyer to stop his client’s war crimes trial, government use of the catch-all “material support for terrorism” charge when all other crimes won’t stick and why the popular outcry for “tough” military commissions trials for accused terrorists ignores the near-perfect conviction rate in federal courts.
MP3 here. (20:33) Transcript below.
Andy Worthington writes for Counterpunch, the Future of Freedom Foundation and Antiwar.com. He is the author of The Guantanamo Files and blogs at AndyWorthington.co.uk. His documentary movie Outside the Law: Stories From Guantanamo is available on DVD.
Transcript – Scott Horton Interviews Andy Worthington, August 4, 2010
Scott Horton: All right, y’all, welcome back to the show. It’s Antiwar Radio, I’m Scott Horton, and our next guest on the show today is the great Andy Worthington. He’s the author of The Guantanamo Files: The Stories of 759 detainees in America’s Illegal Prison and also made the movie Outside the Law. And without him I guess we just wouldn’t know about Guantanamo Bay. Hi, Andy!
Andy Worthington: Hey, hi Scott, how are you doing?
Horton: I’m doing great. Welcome back to the show, man, how are you?
Worthington: Yeah, I’m good, thanks.
Horton: All right, so, look, let’s talk about court cases and things first here. Ah, jeez, well, that’s a really important one, I’ll put that off for a second. Let’s talk about this one from the AP: “US Supreme Court asked to halt Guantanamo trial: Military defense lawyer asks US Supreme Court to halt trial for Guantanamo’s youngest detainee” – that would be Omar Khadr. So, first of all, remind us very quickly who Omar Khadr is, and then let’s talk about what’s going on on the Supreme Court here.
Worthington: Well, Omar Khadr is the 15-year-old Canadian citizen. He was 15 at the time of his capture in July 2002, and, you know, he, from the earliest days really at Guantanamo, has been a candidate for being put forward for a war crimes trial. You know, this is in spite of his age, you know, and the fact that it’s really rather embarrassing to be putting somebody who is 15 on trial for a war crimes trial, let alone the other problems with, you know, where does the war crime come from?
Well, he’s alleged to have thrown a grenade that killed a U.S. soldier in wartime. Plus, you know, the fact that for many years now, since I think 2007, there have been very serious doubts about whether it was possible for him to have thrown this grenade because of previously suppressed evidence that he was actually unconscious, half-dead under a pile of rubble at the time that it was thrown.
So this trial is supposed to be going ahead next week, much to, I think, the shame of the Obama administration. And his lawyer has pitched this kind of last-ditch effort to the Supreme Court to try and halt it, which I’m pretty sure will fail.
Horton: Do you know what the basis of the suit is?
Worthington: I don’t, actually. I only kind of skim read what was going on. I think that he’s trying to – was he trying to suggest that it’s unconstitutional in some way?
Horton: Yeah, I mean, that’s what it says here, but it doesn’t really say – oh, well, he says, “Among other concerns, he said it is unfair because it is reserved only for non-U.S. citizens.”
Worthington: That’s right, yes.
Horton: Yeah, Obama can fix that. Thanks a lot, you know, defense attorney – you’re going to get us all in trouble now.
Worthington: You know, it’s not going to work trying to suggest that there shouldn’t be kind of different ways of dealing with foreigners. I mean I think that’s been the problem we’ve had all along with the war on terror – is that, you know, that what applies to Americans doesn’t apply to foreigners. You know, I can’t see that it would be successful.
You know, the administration has the laws in place to approve the third version of the military commissions. You know, the first one was dreamt up out of some dark book that Dick Cheney had read. And the second version, when those had been chucked out by the Supreme Court, Congress approved, and they stumbled on securing a few dodgy victories under President Bush. And then, you know, President Obama, who came into office seeming to suggest that they were gone, that, you know, men who had committed terrorist crimes were going to face federal court trials, you know, consulted with people, consulted with people in Congress, and decided that actually he’d have two tiers of justice, and he’d have one that was supposed to apply to acts committed in wartime, and here we have Omar Khadr.
And, you know, everybody in an official position, when asked to talk about it, doesn’t seem to care at all that he was a child when he was seized. And, you know, that fundamentally is going to get me more than anything else, more than this absurdity of how it is that throwing a grenade in war can be a war crime – is the fact that he was 15 and that, you know, nobody, nobody has been going ahead with war crimes trials, charges for children, for a very, very long time. And the United States seems to be content to put this in front of the world as though something legitimate to do.
Horton: Yeah. Well, it’s just like with cluster bombs and land mines and the death penalty for minors – you know, trying child soldiers, it’s us and Sudan and a couple of the other worst nation states in the whole world.
Worthington: [laughs] It’s not great, is it?
Horton: No. Cluster bomb treaty is coming up on the show later, and it’s about how America – you know, and of course we give them to Israel to use against women and children all the time, too. Somehow, for some reason, America just insists on cluster bombs. I guess they’re just too much fun to watch on YouTube or something.
Anyway, back to this thing here. You know, something else legal going on in the courts here, and I can’t seem to find the article here, Andy, but I saw it just a couple of days ago, and it was about, I think it was a McClatchy story saying that some lawyers were suing over, I think, the convictions that were already handed down against David Hicks, who was the Australian mujahideen guy, and, I guess, Hamdan the cook, and whoever – and based on the theory that, no matter what David Addington says, no matter how goofy Obama’s Office of Legal Counsel can be when they’re writing these memos, under no circumstances could anybody consider material support for terrorism to be a war crime, that it just can’t be, and that’s how these charges were prosecuted. And, I guess we don’t know whether the court has ruled on that yet, but do I basically have that story right?
Worthington: Well, you know, you seem to be catching me out today, Scott. But I know that this case has been ongoing for some time, so, you know, although I don’t know exactly what’s happening at the moment with it, and there hasn’t been a decision because that would be big news whichever way it went.
You know, what this is about is that when the military commissions were first dug up by Dick Cheney, they looked to him like a great opportunity to prosecute, convict, and execute people who had been tortured without any semblance of due process whatsoever. You know, now it’s understandable, I think, why, when that was examined, that people in court said, “I think you’ve got to be kidding.”
But the version that was revised in the fall of 2006 by Congress – Congress insisted on inserting into this legislation this crime, material support for terrorism, which is not a military crime. It has no military history. Funnily enough, it is a crime if used – in fact I think I could easily say it’s overused in federal court, that it’s actually too easy to prosecute people for providing material support for terrorism in federal court. But it has no history or existence in a military context.
And last summer, when the Obama administration was working with Congress to revise it, senior officials – I mean, senior officials in the Department of Justice and the Department of Defense – said to Congress, “We can’t include this. We think that this will be beaten on appeal.” Yeah? I mean, this is what they said to Congress, and Congress said, “Well enough [inaudible]; we’re going to keep it in.”
Now the only conviction, David Hicks, who is the Australian who took a plea deal in the first conviction in the military commissions in March 2007 – the only charge was material support for terrorism. In the summer of 2008, the second conviction was Salim Hamdan, a man who was not a terrorist but who drove a terrorist around; he was parked with the car pool for Osama bin Laden. He took a paid job. The military jury threw out the charge of conspiracy in his case. He was convicted only on a charge of material support for terrorism.
And the challenges that have been made – and obviously this is a slow, slow process – but this is what it involves. It involves challenges as to whether these convictions were actually correct in the first place. And if we are to take the advice of senior Obama administration officials, they have been suggesting that these charges will be overturned on appeal. And that will leave us with one conviction in the military commissions for their whole history, and one sentence that is due to be handed down next week in the case of Ibrahim al-Qosi, who I also think was frittering around on the periphery of Osama bin Laden’s circle cooking and occasionally driving a car.
Horton: Huh, wow. It’s funny, it’s kind of – the joke that is the war on terror in general is really writ small at Guantanamo Bay. It’s just the biggest farce imaginable, except for the, you know, pain of all the people locked up there forever. All right, hang tight, everybody. It’s Andy Worthington. We’ll be right back with him after this.
Horton: All right, y’all, welcome back to the show. It’s Antiwar Radio, I’m Scott Horton, and I’m talking with Andy Worthington. His website is AndyWorthington.co.uk, and he put together the movie Outside the Law: Stories from Guantanamo, as well as the book, The Guantanamo Files. Andy, how many people are still being held prisoner at Guantanamo Bay right now?
Worthington: 176 as of now.
Horton: And what percentage of those, in your estimation, quality not quantity, are actual bad guys, say, like Ramzi bin al-Shibh?
Worthington: Well, what I would say, you know, following information that has been revealed by various intelligence officials over the years, two to three dozen. I mean, you know, I think that the uppermost limit of people that you could have any kind of case against whatsoever would probably be about 60.
Horton: And you get that number from – that’s basically the amount of people that they brought from the secret prisons when they closed down the secret prisons that they closed down.
Worthington: Well they brought 14 in. They brought in a couple more after that that hardly anybody knows about. They had a bunch of slightly less than high value detainees that they brought in in 2004. You know, I mean all of these were people who were held in secret prisons and very explicitly were subjected to torture. We’ve seen some of those allegations confirmed in the habeas corpus petitions of the prisoners over the last year, where judges have actually ruled out some of the supposed allegations against various other prisoners because they were based on the tortured testimony of some of these guys who constitute the – apparently, the federal government who, you know, against whom there is any kind of case to be made.
So it’s pretty distressing, really, that we have 176 guys in there when even the administration only says that it wants to hold just over 80 of them. You know, it either wants to have trials – the figure that has been stated is 35 to be put forward to trial, so I would say that that counts spot on in terms of who has any kind of serious allegation against them.
I know they said they want to hold 48 others indefinitely because they – you know, one way or another they don’t have enough to put them on trial, but they are pretty scared about letting them go. You know, which is disgraceful in itself, of course, but that’s exactly the heart of the Bush administration’s theory of holding people without charge or trial. But it means that, you know, we’ve got, what, 90, just over 90 people who the administration has said it doesn’t want to carry on holding, it doesn’t want to put on trial, but it seems to be almost completely incapable of releasing.
Horton: Well, you know, I don’t know, going back to what you were saying before the break, though, they’ve had basically no success in getting anything done with their kangaroo court down there in Guantanamo, a lot of times because of the U.S. Supreme Court obstructing their plans and making them start over and these kinds of things, granting habeas corpus petitions and all this. And yet you look at the Department of Justice and the federal court system, and they got a 99.999% conviction rate. Being guilty never has had anything to do with it. They can convict anybody they want, for anything. If nothing else, they’ll call you mail fraud for accepting junk mail when you open your mailbox in the morning.
Worthington: It’s kind of absurd, isn’t it? I mean, because, you know, this whole question of whether they’re going to charge Khalid Sheikh Mohammed and these other guys who are apparently responsible for 9/11, whether they’re going to charge these guys in a federal court. You know, there’s been enormous resistance to their announcement about that last November. Now it’s been shelved, and it’s patently clear that nobody’s going to make a decision about it until after the midterm elections.
So what’s actually happening here is that a bunch of rabble-rousing Republicans, and some Democrats, are forcing the administration not to hold federal court trials for these people but to hold, you know, what they hope, what they’re pushing for, military commission trials at Guantanamo in this insane system that can barely function, that is totally inadequate for dealing with this kind of case, and they’re doing that just purely on some kind of crackpot ideology, which is actually the dominant discourse. And that’s what, you know – when they crank that up loud enough, then sadly the Obama administration, you know, senior officials won’t put their foot down and say, “Look, enough is enough; let’s just do this properly.”
So, you know, what’s going to happen? I mean, if things go badly for the Democrats in November, then we’re going to have Republicans really, you know, pulling the strings more – are these guys ever going to have a trial? Because if they do try to put them on trial in Guantanamo, it’s going to be total chaos.
Horton: Right. Because it’s all made up, right? It’s not a military court martial system or something. It’s all made up, and so rather than having, I don’t know, 230 years of practice at doing this, like they have in the federal court system, they end up just, you know, in chaos the whole time.
Worthington: Yeah, they’ve got something full of holes that was initially put together, you know, largely with Congress in 2006. It’s been revamped. It’s got all these problems that the administration itself acknowledges. It’s just got holes. Every time they convene something at Guantanamo and try and get things together, the holes in the system are more obvious than anything else.
You know, and it’s why this guy al-Qosi, this cook and part-time driver for bin Laden who accepted a plea bargain last month, you know – they want more plea bargains, because then they don’t have to bother with the actual messy details of trying to convict anybody in a broken system. You know, a broken system that they themselves resuscitated. That’s what gets me.
You know, they should have just – they should have been firm. When they came in, I think everybody who has been looking at these issues closely thought, “They are going to just go for federal court trials. Let’s just follow that route and let’s get it over with and it will be okay.”
Horton: That’s not what I thought, dude.
Horton: I’ve never seen a president give up power, and I don’t expect ever to see one.
Worthington: No, no, well I mean, you know, I understand exactly what you mean, Scott, and I know that when you hand dictatorial power to the office of the president, it’s a very, very bad idea, because of course they’re not going to give up willingly. But, you know, the problem with this is that on a common sense basis it makes sense to prosecute them in federal court. I mean, it doesn’t make sense to try this idiotic system that isn’t going to work.
You know, that’s where the whole thing has spiraled out of control. I mean, this isn’t President Obama wanting to hold onto a system that was first conceived by Dick Cheney which has been a resounding success, even though it’s essentially lawless. It’s a failure. You know, there is no point in it happening. And it’s happening really because of some kind of paralysis at the heart of government, you know, where decisions are dictated more by idiotic men who can shout loud. You know. Quite often in the media or through newspaper columns or in Congress.
Horton: Yeah. You know, I’m always so critical of myself. I think I ought to tone it down and act more grown-up and stop yelling so much, but maybe I need to just yell more.
Horton: I mean I can do it! You know –
Worthington: I think you’ve probably got the amount of yelling just about right, Scott, yes?
Horton: All right, thanks Andy, I appreciate that. Well, all right, so, you know, and this is all symptomatic of the larger issue, which is the end of the pretension of the rule of law, and I don’t know if you saw this one in McClatchy, but it’s a commentary by Jameel Jaffer and Larry Siems from the ACLU. It’s called “Torture Memos: Accountability Everywhere But Here?”
Horton: And this is about how, not only do people get prosecuted for torture around the world, government officials, but America insists on the world court, etc., the ICC, etc., prosecuting people for torture all the time, and yet we pretend that, oh, well, “aggressive interrogation techniques” or whatever, and we end up letting dozens and dozens of people that we all know open conspiracy, plan to break the law and torture people, oftentimes to death, and they’re just getting away with it. The precedent’s set. We’re not looking back.
Worthington: Yeah. Yeah, well, it’s true.
Horton: So why not have bogus trials for the ones that you didn’t torture to death yet, you know?
Worthington: Yeah, right, exactly. Well, you know, which is, you know, there’s quite a lot of truth in that. All through the process they were trying to look for somebody they hadn’t tortured and finding it quite hard. But, you know, I mean not being part of the ICC is, you know, is one thing, and that certainly is a brave, if rather difficult, project for some kind of world accountability. And I think America should sign up to it.
But, you know, I have to say that although it’s very naked, the refusal in the state to “look back,” as President Obama has said, it’s pretty hard everywhere else around the world as well to actually hold anybody accountable. I mean, we’ve got this inquiry that’s going to kick off in the UK, but you know let’s not be in any doubt about the fact that the new government in this country doesn’t really want to spill the secrets of what’s happened. You know, they’ve kind of been forced into this position partly by one of the most important people in the new government, who actually, you know, made a lot of noise about this when he was in opposition.
Horton: Yeah, nobody in power wants to set the precedent that they could actually go to jail for breaking the law.
Worthington: No, right, exactly. I mean, it’s –
Horton: I’m sorry, Andy, we’ve got to leave it there, man. Top of the hour break. Fox News – everybody’s got to hear that instead of you, I guess.
Horton: All right, see you next time, thanks a lot.
Worthington: Thank you, Scott.